Fox News contributor Charles Krauthammer claimed Attorney General Eric Holder's directive that federal prosecutors omit evidence that would trigger mandatory minimum sentences for some non-violent drug offenders is unlawful and reflects a pattern of "repeated lawlessness" by the Obama administration. But Holder is simply advising prosecutors to use their already-existing power to decide what evidence to include in their cases.

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Attorney General Announces New Policy To Avoid Mandatory Minimum Sentences For Some Non-Violent Drug Offenders

AG Holder: Non-Violent Drug Offenders Will Face Sentences "Better Suited To Their Individual Conduct." Attorney General Eric Holder announced at an August 12 speech to a gathering of the American Bar Association that he will direct federal prosecutors to avoid triggering mandatory minimum sentences for some non-violent drug offenders:

HOLDER: As a society, we pay much too high a price whenever our system fails to deliver outcomes that deter and punish crime, keep us safe, and ensure that those who have paid their debts have the chance to become productive citizens. Right now, unwarranted disparities are far too common. As President Obama said last month, it's time to ask tough questions about how we can strengthen our communities, support young people, and address the fact that young black and Latino men are disproportionately likely to become involved in our criminal justice system - as victims as well as perpetrators.

[...]

In this area and many others - in ways both large and small - we, as a country, must resolve to do better. The President and I agree that it's time to take a pragmatic approach. And that's why I am proud to announce today that the Justice Department will take a series of significant actions to recalibrate America's federal criminal justice system.

We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes. Some statutes that mandate inflexible sentences - regardless of the individual conduct at issue in a particular case - reduce the discretion available to prosecutors, judges, and juries. Because they oftentimes generate unfairly long sentences, they breed disrespect for the system. When applied indiscriminately, they do not serve public safety. They - and some of the enforcement priorities we have set - have had a destabilizing effect on particular communities, largely poor and of color. And, applied inappropriately, they are ultimately counterproductive.

This is why I have today mandated a modification of the Justice Department's charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences. They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins. By reserving the most severe penalties for serious, high-level, or violent drug traffickers, we can better promote public safety, deterrence, and rehabilitation - while making our expenditures smarter and more productive. We've seen that this approach has bipartisan support in Congress - where a number of leaders, including Senators Dick Durbin, Patrick Leahy, Mike Lee, and Rand Paul have introduced what I think is promising legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders. Such legislation will ultimately save our country billions of dollars while keeping us safe. And the President and I look forward to working with members of both parties to refine and advance these proposals. [U.S. Department of Justice, 8/12/13]

Charles Krauthammer: Holder's Directive That Prosecutors Omit Certain Evidence In Some Cases Demonstrates "Continuous And Repeated Lawlessness" By Obama Administration. After guest host Shannon Bream said on Special Report that Holder's action was similar to the administration focusing deportation efforts on violent offenders and the decision to not defend the Defense of Marriage Act, which was struck down by the Supreme Court, Fox News contributor Charles Krauthammer said:

KRAUTHAMMER: What he's done now, what he's proposed with these drug laws is worse than just suspending the parts of the law, and instructing prosecutors not to prosecute. He also is telling prosecutors who already have prosecutions in place that they can withhold evidence so that the defendant won't get a maximum or a mandatory penalty. I mean, that is illegal. That's unlawful. I mean, that is simply shocking that that would be the instruction from an attorney general.

I think as one former attorney general, deputy attorney general said, if you did that in a private case, you would be accused of a felony if you were prosecuting it and you were withholding evidence. And it is epidemic. It isn't only in this, it is in the Obamacare law, the administration's own law, the parts of which it is suspending. It is in the DREAM Act, which is a unilateral suspension.

And the president proudly says this. He goes out and says I will not allow Congress to stand in the way of x, y, and z I want to do. But under our Constitution, Congress stands in the way if it doesn't approve of something. In a banana republic, Caldio stands up and says I will not allow the old guard, I will not allow a constitution written by autocrats get in the way of helping the people. That's not how we do it here. And it is shocking how little resistance it has gotten not only from the Republicans but from Democrats who gonna live -- who are endorsing this continuous and repeated lawlessness. [Fox News, Special Report with Bret Baier, 8/12/13]

But Holder Is Advising Prosecutors To Exercise Authority They Already Have

Holder's Memo To Prosecutors States They Should Exercise Their Discretion About Charges To Avoid Mandatory Minimum Requirements. In an August 12 memo to federal prosecutors, Holder wrote that "prosecutors should decline to charge the quantity [of drugs] necessary to trigger a mandatory minimum sentence if the defendant meets each of the following criteria." The criteria listed in the memo are:

The defendant's relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;

The defendant is not an organizer, leader, manager or supervisor of others within a criminal organization;

The defendant does not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and

The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions. [Mother Jones, accessed 8/13/13]

NY Times: Prosecutors Have Broad Discretion On Charges. In a 1988 article on the decision to not bring charges against Reagan Attorney General Edwin Meese over his involvement in the Iran-Contra Affair, The New York Times noted that prosecutors have "almost unfettered authority to decide" how to prosecute cases, including "what evidence to present":

The decision of an independent prosecutor this week not to seek criminal charges against Attorney General Edwin Meese 3d has focused new attention on the broad and controversial power granted to American prosecutors in deciding who shall be brought to justice.

Far more than in any other democracy, American prosecutors have almost unfettered authority to decide whom to charge, what crimes to identify, what penalties to seek, what bail to urge, what witnesses to call, what evidence to present, what persons to give immunity from prosecution, what plea bargains to make and what sentences to negotiate.

[...]

The discretion afforded American prosecutors is defended on the ground that it provides for case-by-case flexibility and ultimately more leniency for deserving defendants. But critics say it has been abused with considerations of race, class and political affiliation. Draft protesters, users of small amounts of marijuana and minor traffic offenders have challenged verdicts and sentences by showing that others were not prosecuted for similar crimes, and prosecutorial bias has been charged in jury selection and death penalty cases.

The subject has grown so controversial in recent years that it has been the focus of more than 200 law review articles and 280 Federal court cases since 1985. That does not count the thousands of scholarly law articles, speeches and the cases in state and local courts.

''It's a fundamental topic in the criminal justice system,'' said Philip B. Heymann, a professor of law at Harvard who was the Assistant United States Attorney General in charge of the criminal division from 1978 to 1981.

Mr. Heymann, who heads the Center for Criminal Justice at Harvard, said prosecutors have the authority not to bring charges even when they think they can prove a crime has been committed. He noted that such decisions are necessary in part because there is so much crime in the United States; prosecutors could not possibly process all of it.

The Federal courts have consistently upheld a prosecutor's powers. ''The discretion allowed prosecutors,'' the Supreme Court said last year in a trademark infringement case, Young v. United States, ''is so broad that decisions not to prosecute are ordinarily unreviewable.'' Only in cases of flagrant abuse, including criminal activity by a prosecutor, may a court overrule a prosecutor's decision, the Court has said. [The New York Times, 7/22/88]

Wash. Post: Decision To Change How Criminal Complaints Are Made Is A Change He Can Make On His Own; Other Initiatives Require Legislative Action. The Washington Post reported that Holder's memo to prosecutors represents a change to drug policy he can do on his own authority:

The attorney general can make some changes to drug policy on his own. He is giving new instructions to federal prosecutors on how they should write their criminal complaints when charging low-level drug offenders, to avoid triggering the mandatory minimum sentences. Under certain statutes, inflexible sentences for drug crimes are mandated regardless of the facts or conduct in the case, reducing the discretion of prosecutors, judges and juries.

Some of Holder's other initiatives will require legislative change. Holder is urging passage of legislation with bipartisan support that is aimed at giving federal judges more discretion in applying mandatory minimum sentences to certain drug offenses. [The Washington Post, 8/12/13]

Conservative Policy Analysts: Holder Has Authority For His Directive. On National Review Online's The Corner blog, Vikrant P. Reddy and Marc A. Levin from the Texas Public Policy Foundation's Right On Crime initiative explained that the attorney general has the authority to suggest prosecutors use their discretion to reduce sentences, but recommended it be followed up with legislation:

The attorney general has exercised his authority to provide guidance to federal prosecutors to exercise discretion in applying mandatory minimums in drug cases to ensure that the longest sentences are reserved for kingpins. Nonetheless, this administrative action comes five years into this presidency and could be undone at the whim of this or any future attorney general. Therefore, statutory reforms are still needed to ensure that the law provides a reasonable range of punishment for low-level federal drug offenses such that there is enough prosecutorial and judicial flexibility to craft sentences that fit the crime. [National Review Online, The Corner, 8/13/13]

Krauthammer: DHS Policy To Focus On Deporting Violent Criminals Was "High-Handed And Lawless." After repeatedly accusing the administration of not wanting to enforce immigration law, Krauthammer stated that the administration's focus on deporting violent criminals was "high-handed and lawless on the part of the administration." [Fox News, Special Report with Bret Baier, 6/25/12, via Media Matters]

Krauthammer: Administration Was Acting "Illegally" When It Decided To Change How States Can Apply For Welfare Waivers. Krauthammer claimed that the Obama administration was "acting, what is essentially illegally, in granting waivers in a bill that does not allow the granting of waivers." [Fox News, Special Report with Bret Baier, 8/7/12, via Media Matters]

Krauthammer: Decision To Give Certain Young Immigrants Chance To Remain In U.S. Was "Out-And-Out Lawlessness." Krauthammer said that the decision by the Department of Homeland Security to grant certain immigrants who were brought to the U.S. as young children a chance for reprieve from deportation was "out-and-out lawlessness" and "not how you run a constitutional republic." [Fox News, Special Report with Bret Baier, 6/15/12, via Media Matters]

To learn the truth about the policies Krauthammer has falsely characterized as illegal, click here.

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